The New York Review of Books
November 17, 2005
CRIME & PUNISHMENT
In response to The Right to Life
(May 12, 2005)
To the Editors:
I read Hilary Mantel's penetrating review of Sister Helen Prejean's book, The Death of Innocents [NYR,
May 12], the night before conducting an oral hearing of a life-sentence
prisoner in a prison in the west of England. The man, now aged
forty-six, had committed a gruesome murder of his next-door neighbor's
wife, masturbating himself once the woman was dead. He was twenty-two
at the time, deep in drink and self-loathing, nursing anger at his own
violent upbringing at the hands of a sexually abusive father.
Now, twenty-four years later, having completed a range of
challenging courses, including a sex offender treatment program,
discipline, psychology, and probation staff in the prison have written
a series of positive reports, recommending that he is ready to move to
open prison, in preparation, maybe, two years down the line, for
release on life license under probation supervision.
He is not exceptional. Each year in England and Wales some two
hundred lifers are released after the tariff or punishment period of
their sentence, set by a judge, has expired. At the end of the tariff
period, their cases are reviewed every two years by a parole board,
consisting of a judge, a psychiatrist, and an independent member, at an
oral hearing to test whether they can be safely transferred from secure
to open prison and from open to the community under license. The test
for release is whether the prisoner still represents a risk to life and
limb.
In England and Wales there are approximately five thousand lifers in
prison, most of whom will be released under license; there are less
than thirty lifers in the system serving a whole-life tariff. By
contrast, in the United States, one in four of the 130,000 lifers in
state prisons or federal institutions are serving life without the
prospect of parole. The reason for this appears to be not more crime in
the United States but the result of longer mandatory sentences and a
more restrictive parole policy.
The irony is that most released lifers do well, get jobs, settle
down with a new partner, and stay out of trouble. Why? Most have
matured over a period of ten to twenty years in prison, have got
themselves an education, taken responsibility for their past including
the devastating impact of their homicidal behavior on the victim and
his family, and are acutely aware that one false move could lead to a
return to prison. Less than 2 percent of the released group commit a
grave offense after release.
Containment is not enough. Whilst the truly dangerous will always
need to be locked up, perhaps for a lifetime, the majority of lifers
have the capacity, given the opportunity by a legislature and an
informed public, to mature, face the consequences of their past, and
start to lead responsible lives once more. Is Europe, or indeed England
and Wales, so different in respect of what we do about the ultimate
crime and punishment that we cannot learn from each other?
John Harding
Parole Board Member for England and Wales
Visiting Professor in Criminal Justice Studies, Hertfordshire University
Winchester, England
Hilary Mantel replies:
I'm indebted to John Harding for widening the terms of the debate.
"Lock 'em up and throw away the key" doesn't amount to a penal policy,
and it's dismaying to find US advocates of the abolition of capital
punishment—even those who are as compassionate and informed as Sister
Helen Prejean—offering the prospect of whole-life imprisonment as a
kind of consolation prize to a worried public. I concede that the
prospect of killers being released to kill again is terrifying, and
that there will always be some prisoners who, in any jurisdiction, must
never be released. But what should concern the public more immediately
is that basic defects in the criminal justice system have been revealed
by close examination of capital cases. Again and again, the mechanism
for establishing the facts of a case is shown to be flawed. If this is
true for cases where the death penalty is demanded, it is likely to be
true for all homicide cases; and for lesser cases as well?
On the question of whole-life sentences, the figures John Harding
quotes speak for themselves. Surely, there are very few human beings
wholly incapable of redemption? At least, it seems the mark of a
civilized society to think there are not. How, except by inhuman rigor,
do you contain a prisoner who has no hope? What does a prison look and
feel like, if it has abandoned the function of rehabilitation and is
devoted only to shutting away people who are regarded as dangerous
animals?
I felt tempted to add into my original review a passage which said,
"there is another way of doing things," and of course it's the way that
John Harding describes. But I didn't want to divert from the main
topic, or sound like a smug Brit. After all, there's plenty wrong with
our penal system, and we are not immune to pressure from "public
opinion" whipped up by tabloid newspapers. But our judges and lawyers
are not dependent on people-pleasing to keep their jobs; they don't
have to run for election and satisfy the ill-informed knee-jerk
retributionists. It's all a bit of a puzzle for democrats, I think.
The ongoing riots in France seem to carry lessons for our understanding of cultural pluralism and subsidiarity. An article in today's London Times notes that:
Under the ethnically colour-blind “French model”, the immigrant workers who came in the 1950s and 1960s from the former colonies in North and black Africa were to be regarded as equal citizens. They and their descendants would take advantage of the education system and generous welfare state to assimilate with “white” France. To promote the idea of assimilation, neither the State nor any other body publishes statistics on ethnic or national origin. . . . Laws supposed to promote integration and oppose multiculturalism, such as the ban on Muslim headwear in schools, have often heightened resentment and the feeling of exclusion. This has in turn fed the rise of Muslim radicalism, which has now become the dominant creed of the young in the French ghettos.
France has always deemed its model superior to the Anglo-Saxon approach of diversity, which has enabled ethnic minorities to retain strong bonds in cultural and religious communities. France calls this “comunitarism” and says that it promotes ghettos, exclusion, poverty, race riots and religious extremism that can ultimately lead to actions such as the London bombings.
It seems that subsidiarity would call for a middle ground to be explored in which a subcommunity's economic integration with society is achieved without purporting to negate the cultural or social characteristics that define the subcommunity. Perhaps the Anglo-Saxon approach has too often tended toward economic isolation, and the French approach toward cultural negation. And France's color-blind approach may be doubly problematic, as it ultimately brings economic isolation as well given the futility of the cultural task -- i.e., Muslim communities will remain different from the surrounding culture in important ways, and unless economic policy takes account of those differences, the cultural enclave can become an economic island. Obviously, easy answers are hard to come by, but it seems that subsidiarity should be one component of the question.
Rob
I have a couple of thoughts on this. I don't think that Justice Scalia means to articulate a broad doctrine of Christian timidity. In fact, most of his writing about the role of judges is that that they shouldn't be promoting a moral agenda because that is the responsibility of those who have direct input on the democratic process. So, judges ought to be quietist, but other political actors should not. I don't think Justice Scalia at all has in mind the idea that the faithful ought to privatize the moral views that they hold. Justice Scalia's comments are more directed at the hierarchy. (Perhaps he is thinking about Vatican II's exhortation that it is the responsibility of the laity to build up the temporal order.) Even here, his view doesn't seem to be that the hierarchy should not be making moral statements or should not be trying to influence the moral development of the faithful. He seems to be objecting to "creeping infalllibility"--where non-binding moral teachings are treated as such because that would he says, in the matter of the death penalty, drive Catholic out of public service.
Although some of his language is more sweeping than I am suggesting here, I don't think that it is appropriate to charge Justice Scalia with advocating some broad-ranging doctrine of moral quietism or Christian timidity.
Richard
